[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 has been preferred by the appellants herein - original plaintiffs to quash and set aside the impugned judgment and order dated 16.09.1988 passed by the learned District Judge, Surat in Regular Civil Appeal No.7 of 1987 by which the learned Appellate Court has allowed the said Appeal preferred by the respondent herein
- original defendant and has quashed and set aside the judgment and decree dated 31.01.1987 passed by the learned 3rd Joint Civil Judge (Junior Division), Surat decreeing the suit.
[2.0] That the respondent - Municipal Corporation issued a notice dated 26.08.1981 upon the appellants herein - original plaintiffs to demolish the illegal construction. The same came to be challenged by the appellants herein - original plaintiffs before the learned Civil Judge (Junior Division), Surat by way of filing Regular Civil Suit No.1216 of 1981 and the original plaintiff instituted the aforesaid suit for permanent injunction and declaration. The suit was resisted by the defendant by submitting that before the demolition notice a criminal proceeding was initiated against the appellants for the aforesaid illegal construction and the plaintiffs admitted the illegal construction and paid the penalty. Therefore, it was submitted that thereafter it is not open for the plaintiffs to challenge the notice for demolition. It was further submitted that as the construction for which the notice was given is illegal, it was requested to dismiss the suit.
[2.1] It was the case on behalf of the plaintiff that the admission on behalf of the plaintiffs in criminal court was made as the officer of the Corporation gave the assurance that illegal construction would be regularized. That the learned trial Court by judgment and decree dated 31.01.1987 decreed the suit and granted declaration that the notice issued by the defendant bearing No.TDO/4980 dated 27.08.1981 is illegal and unauthorized and the learned trial Court also granted permanent injunction restraining the Corporation from demolishing the construction and/or implementing the notice dated 27.08.1981.
[2.2] Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court decreeing the suit, the respondent herein - original defendant preferred Regular Civil Appeal No.7 of 1987 before the District Court, Surat and the learned District Judge, Surat by impugned judgment and order has allowed the said Appeal by quashing and setting aside the judgment and decree passed by the learned trial Court decreeing the suit. Being aggrieved and dissatisfied with the judgment and order passed by the learned Appellate Court, the appellants herein - original plaintiffs have preferred the present Second Appeal under Section 100 of the Code of Civil Procedure, 1908.
[3.0] Nobody has appeared on behalf of the appellants / respondent. This being an Appeal of 1988, the same is proceeded further ex-parte.
[4.0] Considering the impugned judgment and order passed by both the Courts below, more particularly, impugned judgment and order passed by the learned Appellate court, it appears that as such the original plaintiffs admitted before the criminal court that there is an illegal construction made by them for which the Corporation has issued the notice for demolition and even the plaintiffs paid the penalty. Under the circumstances, when the plaintiffs admitted before the criminal court that the construction for which the notice for demolition was given is illegal and they paid the penalty, thereafter it was not open for the plaintiff to challenge the notice which was issued to demolish the said illegal construction. As rightly observed by the learned Appellate Court, the appellants have failed to prove that any assurance was given by the Corporation that the construction shall be regularized. Under the circumstances, no illegality has been committed by the learned Appellate Court in allowing the Appeal and quashing and setting aside the judgment and decree passed by the learned trial Court by which the permanent injunction was granted against Corporation restraining the Corporation from removing illegal construction.
[5.0] In view of the above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R.
Shah, J.) menon Top